Veterans seek to launch class-action lawsuit over injury compensation

Afghan veteran Kevin Berry says he suffers from post-traumatic stress disorder and hopes a lawsuit will lead to better compensation.

Photograph by: Glenn Baglo, PNG Files
, Vancouver Sun

Lump-sum payments issued by the federal government to injured veterans do not provide sufficient compensation for physical and mental trauma that can last a lifetime, according to a proposed class-action lawsuit filed in B.C. Supreme Court on Tuesday.

The six plaintiffs in the case — four of whom are from B.C. — are current or former members of the Canadian Forces who were injured in the course of duty and are seeking damages from the federal government. If the court certifies the lawsuit as a class action, it could apply to hundreds of veterans who served and were injured in Afghanistan.

“It’s a restoration of hope,” plaintiff Kevin Berry said of the proposed lawsuit. “To be taking action feels a lot better than talking about taking action.

“Adapting to the injuries that I suffered overseas and at the same time having to fight my own government, that’s been incredibly taxing, both psychologically and physically.”

Berry said he still suffers from post-traumatic stress disorder and long-term pain in both knees after tearing ligaments during a routine patrol. Panic attacks have limited him to studying history part time at Simon Fraser University and Berry said he spends much of his free time talking to other veterans with PTSD through online support networks.

“This isn’t a new problem,” he said. “It’s new that we’re talking about it.

“There are probably cavemen that smashed someone’s head in with a rock that had symptoms of PTSD.”

His PTSD led alcohol abuse and has ruined numerous relationships, Berry said. Though he still suffers anxiety attacks, Berry said he has been sober 18 months and hopes to graduate from SFU and go into public service of some type.

Afghanistan’s veterans should get the same benefits offered to soldiers of previous generations, Berry said, adding that his end wish is to see pensions restored and lump-sum payments abolished.

“The main thing is we don’t want any more and we don’t want any less than any previous verterans,” he said.

At the heart of the lawsuit are changes made by the federal government to the way veterans are compensated for injuries sustained over the course of duty. The changes, which took effect in 2006, established a lump-sum payment program under a piece of legislation called the New Veterans Charter that work out to anywhere between 30 and 65 per cent less than the disability pensions previously provided under the Pension Act, according to the statement of claim. The government unfairly expects veterans to invest the lump-sum payout and live off the interest for the rest of their lives, despite their own reduced ability to earn income, the lawsuit alleges.

Donald Sorochan, QC, said of the six plaintiffs he is representing, several would have been awarded more money by a court if a similar injury occurred in a Canadian workplace.

For instance, the injuries suffered by plaintiff Gavin Flett, who broke his femur and shattered an ankle while clearing brush at a combat outpost in Afghanistan, are “comparable to a workers’ compensation situation — like an injury for a forestry worker,” Sorochan said. Another plaintiff, Dan Scott, “is analogous to an act of negligence.”

Scott was badly injured by shrapnel during a training exercise when fellow soldiers accidentally exploded a claymore mine at close range.

The amount of money a veteran can receive is capped at $293,308 regardless of the number of injuries, whereas courts can award up to $342,500 per injury. Courts also take into account things like past wage loss, future earning loss, future care and fund management fees “but the awards under the New Veterans Charter are substantially less than lump sum awards of damages for similar injuries determined in judicial proceedings and do not take all of these factors into account,” the lawsuit claims, adding that some injured veterans receive up to 90 per cent less than what they would through the courts or workers’ compensation as a result.

“Since the enactment of the New Veterans Charter (injured veterans) have been terminated in their employment and forced out of their income source as members in the Canadian Forces, have been unable to find meaningful employment and have been provided with a total financial compensation package ... that is insufficient to maintain a normal lifestyle for those of similar employment background in Canadian society,” the lawsuit claims.

The plaintiffs are seeking, among other things, declarations that the table of disabilities used to assess damages is of no force and effect and that the plaintiffs have been discriminated against contrary to the Charter of Rights and Freedoms. They also seek to be paid the difference of the amount they received under the New Veterans Charter and what they would have received for similar injuries as assessed by the courts, plus damages and interest.

Veterans Affairs Canada spokeswoman Janice Summerby said the government will not comment on the lawsuit as it is before the courts.

Lump-sum payments issued by the federal government to injured veterans do not provide sufficient compensation for physical and mental trauma that can last a lifetime, according to a proposed class-action lawsuit filed in B.C. Supreme Court on Tuesday.

The six plaintiffs in the case — four of whom are from B.C. — are current or former members of the Canadian Forces who were injured in the course of duty and are seeking damages from the federal government. If the court certifies the lawsuit as a class action, it could apply to hundreds of veterans who served and were injured in Afghanistan.

“It’s a restoration of hope,” plaintiff Kevin Berry said of the proposed lawsuit. “To be taking action feels a lot better than talking about taking action.

“Adapting to the injuries that I suffered overseas and at the same time having to fight my own government, that’s been incredibly taxing, both psychologically and physically.”

Berry said he still suffers from post-traumatic stress disorder and long-term pain in both knees after tearing ligaments during a routine patrol. Panic attacks have limited him to studying history part time at Simon Fraser University and Berry said he spends much of his free time talking to other veterans with PTSD through online support networks.

“This isn’t a new problem,” he said. “It’s new that we’re talking about it.

“There are probably cavemen that smashed someone’s head in with a rock that had symptoms of PTSD.”

His PTSD led alcohol abuse and has ruined numerous relationships, Berry said. Though he still suffers anxiety attacks, Berry said he has been sober 18 months and hopes to graduate from SFU and go into public service of some type.

Afghanistan’s veterans should get the same benefits offered to soldiers of previous generations, Berry said, adding that his end wish is to see pensions restored and lump-sum payments abolished.

“The main thing is we don’t want any more and we don’t want any less than any previous verterans,” he said.

At the heart of the lawsuit are changes made by the federal government to the way veterans are compensated for injuries sustained over the course of duty. The changes, which took effect in 2006, established a lump-sum payment program under a piece of legislation called the New Veterans Charter that work out to anywhere between 30 and 65 per cent less than the disability pensions previously provided under the Pension Act, according to the statement of claim. The government unfairly expects veterans to invest the lump-sum payout and live off the interest for the rest of their lives, despite their own reduced ability to earn income, the lawsuit alleges.

Donald Sorochan, QC, said of the six plaintiffs he is representing, several would have been awarded more money by a court if a similar injury occurred in a Canadian workplace.

For instance, the injuries suffered by plaintiff Gavin Flett, who broke his femur and shattered an ankle while clearing brush at a combat outpost in Afghanistan, are “comparable to a workers’ compensation situation — like an injury for a forestry worker,” Sorochan said. Another plaintiff, Dan Scott, “is analogous to an act of negligence.”

Scott was badly injured by shrapnel during a training exercise when fellow soldiers accidentally exploded a claymore mine at close range.

The amount of money a veteran can receive is capped at $293,308 regardless of the number of injuries, whereas courts can award up to $342,500 per injury. Courts also take into account things like past wage loss, future earning loss, future care and fund management fees “but the awards under the New Veterans Charter are substantially less than lump sum awards of damages for similar injuries determined in judicial proceedings and do not take all of these factors into account,” the lawsuit claims, adding that some injured veterans receive up to 90 per cent less than what they would through the courts or workers’ compensation as a result.

“Since the enactment of the New Veterans Charter (injured veterans) have been terminated in their employment and forced out of their income source as members in the Canadian Forces, have been unable to find meaningful employment and have been provided with a total financial compensation package ... that is insufficient to maintain a normal lifestyle for those of similar employment background in Canadian society,” the lawsuit claims.

The plaintiffs are seeking, among other things, declarations that the table of disabilities used to assess damages is of no force and effect and that the plaintiffs have been discriminated against contrary to the Charter of Rights and Freedoms. They also seek to be paid the difference of the amount they received under the New Veterans Charter and what they would have received for similar injuries as assessed by the courts, plus damages and interest.

Veterans Affairs Canada spokeswoman Janice Summerby said the government will not comment on the lawsuit as it is before the courts.

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